First Nations Children Still Holding Their Breath After Landmark Victory Before the Canadian Human Rights Tribunal

Tuesday, March 1, 2016

On
January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a
historic decision finding that Canada is racially discriminating against
163,000 First Nations children and their families by providing flawed and
inequitable child welfare services ("FNCFS Program") and failing to
implement Jordan's Principle to ensure equitable access to government services
available to other children (2016 CHRT 2, CHRR Doc. 16-3003).

The
decision marked the end of a nine-year legal battle waged by Canada against the
First Nations Child and Family Caring Society and the Assembly of First Nations
since they lodged the complaint in 2007. Numerous attempts by Canada to have
the complaint dismissed on technicalities and troubling conduct on the part of
Department of Justice lawyers who failed to disclose tens of thousands of
relevant documents caused significant delays in the case, a litigation strategy
that came at an immense cost to Canadian taxpayers. In total, Canada spent well
over $5.3 million in legal fees fighting this complaint.

The
CHRT’s findings against Canada joins the growing chorus of Canadian voices
collectively calling for immediate and concrete action by the government to
ensure substantial equality for First Nations children. Children have been
particularly instrumental in leading the social movement in support of the
case. On February 11, 2016, over 600 children marched on Parliament Hill to
demand that Canada implement the CHRT’s decision without delay, while thousands
of other children organised over 40 similar gatherings across the country.
Countless more sent Valentine’s Day cards to Prime Minister Trudeau urging him
to “Have a Heart” for First Nations children.

Despite
the children’s complete victory before the CHRT and the unprecedented public
outcry in support of equality, the new government has still taken no steps to
improve the situation of First Nations children living on reserves. This is not
for lack of awareness of the discriminatory impacts of the FNCFS Program or how
to resolve these problems. As highlighted in the CHRT, Canada has known for
nearly two decades that it its child welfare services were not meeting the
needs of First Nations families and were driving children into care. More
recently, the Truth and Reconciliation Commission’s first call to action
related to child welfare and urged the government to take immediate action
reduce the number of children in care and fully implement Jordan’s Principle.
While on the day of the release of the decision the Minister of Justice stated
“there will likely not be any reason why we would seek judicial review of this
decision”, at the time of writing this article, Department of Justice lawyers
had still not confirmed whether they would be challenging the CHRT decision
before the Federal Court.1

Canada’s position internationally
regarding the case is also cause for concern. In response to a question of
regarding the case by the Committee on Economic, Social and Cultural Rights,
which is currently reviewing Canada’s human rights track records for the past
10 years, Canada placed more emphasis on an earlier CHRT decision to dismiss
the case (2011 CHRT 4, 73 C.H.R.R. D/219) that was later overturned (2012 FC
445, 74 C.H.R.R. D/230; aff’d 2013 FCA 75, 76 C.H.R.R. D/353) than on the
CHRT’s finding of discrimination.2 Its reply otherwise vaunted the
fact that it had implemented the Enhanced Prevention Focused Approach to
funding in six provinces, a funding model that the CHRT found to be
discriminatory and which creates incentives to take First Nations children into
care needlessly.

While
the legal precedent created by the CHRT decision is certainly cause for
celebration, it has not yet translated in meaningful change for the over
163,000 First Nations children currently receiving discriminatory child welfare
services from the Canadian government. In the absence of the political will or
ethical compass to do so, Canada may soon be legally compelled to act by the
CHRT which will issues its orders pertaining to immediate and longer term
relief remedies in the coming weeks or months.

Anne Levesque, B.A., LL.B., MSt (Oxon)
is proud to have been one of the lawyers who represented the First Nations Child and Family Caring Society of Canada in this case.

1.Hansard,
42nd Parliament, 1st Session, Honorable Jody Wilson-Raybould, Minister of
Justice, January 26, 2016. Available online at
http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Journals&Language=
E&Mode=1&Parl=42&Ses=1&DocId=8073490&File=0. It is noted
however that in a speech to the Canadian Bar Association on February 20, 2016,
the Honorable Jody Wilson-Raybould stated that she should not be seeking a
judicial review of the CHRT decision. However, at the time of writing this
article, no written confirmation of this has been obtain by Department of
Justice lawyers.

2.Replies of
Canada to the List of Issues, Committee on Economic, Social and Cultural
Rights, fifty-seventh session, dated February 4, 2016. Regarding the decision,
Canada simply stated: “On January 26, 2016, the Tribunal released its decision
on the merits of the complaint. The Tribunal’s finding of discrimination
against Canada is being reviewed to determine appropriate next steps”.